NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
NOV 04 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
JIN RUI GROUP, INC., a California No. 13-56311
corporation,
D.C. No. 2:11-cv-06959-RGK-
Plaintiff - Appellee, JEM
v.
MEMORANDUM*
SOCIETE KAMEL BEKDACHE & FILS
S.A.L., a Lebanese joint stock corporation,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Argued and Submitted October 22, 2015
Pasadena, California
Before: KOZINSKI, IKUTA, and OWENS, Circuit Judges.
Defendant-Appellant Societe Kamel Bekdache & Fils S.A.L. (SKB) appeals
from the district court’s judgment in favor of Plaintiff-Appellee Jin Rui Group, Inc.
(Jin Rui), following a bench trial. We vacate and remand.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1. The district court erred in holding that the contractual force majeure
clause excused Jin Rui from performing its contractual obligations to SKB.
Although the contract excused Jin Rui from “non-delivery . . . arising from any
event beyond its reasonable control,” California law requires a promisor invoking a
force majeure clause to show “that, in spite of skill, diligence and good faith on his
part, performance became impossible or unreasonably expensive.” Oosten v. Hay
Haulers Dairy Emps. & Helpers Union, 291 P.2d 17, 21 (Cal. 1955) (quoting
Corbin on Contracts § 1342).
Jin Rui failed to take reasonable steps to ensure that it could meet its
contractual obligations to SKB. Jin Rui promised to deliver paper to SKB even
though its supplier was under no contractual obligation to provide the paper to Jin
Rui. Although Jin Rui did not want to seek a binding promise from its supplier
because of a familial relationship, it was within Jin Rui’s control to account for this
fact in its own business commitments. Jin Rui’s failure to do so does not excuse its
performance. See Pac. Vegetable Oil Corp. v. C.S.T., Ltd., 174 P.2d 441, 447 (Cal.
1946) (explaining that the test for force majeure is whether the excusing event
“could not have been prevented by the exercise of prudence, diligence and care”).
2. In its answering brief, Jin Rui expressly waived reliance on the district
court’s alternative holding that SKB’s claims are barred by the contractual
2 13-56311
limitations clause. Meanwhile, in its opening brief, SKB expressly waived any
challenge to the district court’s decision that it was not entitled to a setoff for
damages related to Purchase Order 136.
The judgment is VACATED and the matter is REMANDED for further
proceedings. Costs are awarded to SKB.
3 13-56311